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Mental Health Law

Mental Health Law, special rules surrounding people with mental illnesses, in particular, concerning their detention for treatment and for reasons of safety. All countries have some provision for detaining people who are a danger to themselves or others because of their mental state; this is a widely accepted exception to the principle that nobody should be imprisoned without trial.

Mental Health Law

English law provides an example of a developed system of detention. The key to the system is the medical practitioner, whose recommendation is necessary for a detention. In case of emergency, a patient can be detained for assessment for up to 72 hours. Thereafter, the usual detention is for 28 days, for treatment in a psychiatric hospital, or psychiatric department of a general hospital. This requires two doctors’ recommendations, one of which should be from a psychiatrist. The recommendations are accompanied by a request from a relative or approved social worker to the hospital authorities, who are officially responsible for the detention. In effect, once the recommendations and request are signed, the formalities of detention are complete.

Longer periods of detention are available. A patient may be detained for six months, and thereafter for periods of a year at a time. Long-term detention is only available when there is a therapeutic reason for the patient to be in hospital: if there is no suitable treatment for the patient, a person cannot be kept in hospital merely because he or she is dangerous. Shorter periods of detention are available to be invoked by doctors and nurses for a few hours when to release a patient would be dangerous and the necessary signatures for a longer detention cannot be immediately obtained.

Patients detained have a right to have the detention considered by the hospital management, who are legally responsible for it. They subsequently have the right to a hearing, with legal representation, before a mental health review tribunal chaired by a lawyer and containing psychiatrists not involved in the case, who examine whether the detention is justified and should continue.

Mentally disordered offenders may be given a sentence that detains them in hospital, instead of the usual punishments. This will usually follow from a psychiatrist’s recommendation to the court. A defendant who is made the subject of a hospital order can only be released on the order of a mental health review tribunal or the home secretary.

There is a complicated provision for treating a patient for mental illness without consent, which often requires the practitioner responsible to obtain an impartial second opinion from another specialist. Further requirements surround irreversible treatment such as brain surgery. By contrast, when mental illness causes a patient to refuse necessary treatment for a physical illness, the doctors must fall back on their vaguely defined right to treat a patient without consent because of the necessity of the treatment.

If a person suffers from such a degree of mental disability that he or she is unable to manage his or her own affairs, the Court of Protection (an office of the Supreme Court) administers them on the person’s behalf.

Mental Health Law

Contributed By:
David Watson

Reviewed By:
Simon Levene

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